Opinion
2016–489 N C
04-05-2018
Elliot RINDENOW, Appellant, v. Esther ALENICK and Hillel Alenick, Respondents.
Dorf & Nelson, LLP (Jonathan B. Nelson, Rye, of counsel), for appellant. Zisholtz & Zisholtz, LLP (Meng Cheng, Long Island City, of counsel), for respondents.
Dorf & Nelson, LLP (Jonathan B. Nelson, Rye, of counsel), for appellant.
Zisholtz & Zisholtz, LLP (Meng Cheng, Long Island City, of counsel), for respondents.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ.
ORDERED that so much of the appeal as is from the order dated September 8, 2015 is dismissed as abandoned, as landlord's brief does not raise any argument concerning the propriety of that order; and it is further,
ORDERED that so much of the appeal as is from the order dated January 5, 2016 is dismissed as moot, in light of our determination of so much of the appeal as is from the order dated July 21, 2016; and it is further,
ORDERED that the order dated July 21, 2016 is reversed, without costs, landlord's motion for leave to renew his opposition to the branch of tenants' motion seeking to dismiss the petition is granted and, upon renewal, the order dated January 5, 2016 is vacated and the determination in the order dated September 8, 2015 denying tenants' motion to dismiss the petition is adhered to.
Landlord commenced this nonpayment proceeding pursuant to an alleged agreement by tenants to pay rent. Tenants answered, asserting, among other things, as an affirmative defense and counterclaim, that landlord had become the "owner of the premises as the constructive trustee for and on behalf of the Respondents." Tenants moved to dismiss the petition, asserting that they were the prior owners of the premises, that they had given landlord, who is the brother of one of the tenants, $70,000 toward the purchase price of the property, and that the 1992 referee's deed conveying the property to landlord was void because of an automatic bankruptcy stay that had been in effect at the time of the conveyance. Landlord opposed tenants' motion and separately moved for summary judgment, denying, among other things, that the conveyance of the deed was void or that tenants had given him $70,000 towards the purchase of the house. The District Court denied both the motion to dismiss and the motion for summary judgment.
Tenants moved for leave to reargue or renew their motion to dismiss on the ground that the 1992 conveyance had been made in violation of the automatic bankruptcy stay, as the foreclosure sale had occurred during the pendency of the 1992 bankruptcy action. The branch of the motion seeking leave to reargue was granted, and, upon reargument, the motion to dismiss the petition was granted. Thereafter, landlord moved for leave to renew his opposition to tenants' motion to dismiss the petition, on the ground that newly discovered evidence demonstrated that the bankruptcy stay had been vacated prior to the foreclosure sale and the conveyance of the deed to landlord on August 11, 1992, namely, a copy of an order of the Bankruptcy Court vacating the stay on January 28, 1992. As justification for the delay, landlord pointed out that the order had been attached to a referee's report of sale which had been located in off-site storage of the Supreme Court, Nassau County, the court in which the foreclosure action had been filed in 1992. The District Court denied landlord's motion for leave to renew.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" ( CPLR 2221 [e] [2] ) and "shall contain reasonable justification for the failure to present such facts on the prior motion" ( CPLR 2221 [e] [3]; see Semenov v. Semenov , 98 AD3d 962, 963 [2012] ; Guerrero v. Marable , 30 Misc 3d 144[A], 2011 NY Slip Op 50333[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).
Landlord's motion to renew is based on evidence not previously before the court that conclusively demonstrates that the District Court's order was based on a misapprehension of the relevant facts, as the Bankruptcy Court had vacated the automatic stay on January 28, 1992, prior to the foreclosure sale and the conveyance of the deed to the subject premises. The first requirement of a motion to renew is thus established. Landlord additionally provided a reasonable justification for the delay: the docket sheet for the bankruptcy action has no indication of the relevant order, and the action had terminated over two decades earlier, with the Supreme Court file having been stored in an off-site location (see Pinpoint Tech. LLC v. Santos , 49 Misc 3d 251 [Civ Ct, Bronx County 2015] ). Consequently, the District Court erred in denying landlord's motion.
Accordingly, the order dated July 21, 2016 is reversed, landlord's motion for leave to renew his opposition to the branch of tenants' prior motion seeking to dismiss the petition is granted and, upon renewal, the order dated January 5, 2016 is vacated and the determination in the order dated September 8, 2015 denying tenants' motion to dismiss the petition is adhered to.
GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.